United States v. Bennett

United States Court of Appeals
For the First Circuit

No. 16-2039

GEORGE H. BENNETT,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Barron, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.

Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellant.
James S. Nixon, Assistant Federal Defender, with whom Federal
Defender Office -- Bangor Branch was on brief, for appellee.

July 5, 2017

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 BARRON, Circuit Judge. This appeal concerns George

Bennett's challenge to his thirty-year prison term for a number of

federal crimes. Bennett's sentence depended, in significant part,

on the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). That

law imposes a mandatory minimum prison sentence of fifteen years

on a defendant who has been convicted of violating 18 U.S.C.

§ 922(g), a statute that prohibits certain persons from possessing

or transporting firearms, if that defendant has at least three

prior convictions for an offense that falls within ACCA's

definition of a "violent felony." 18 U.S.C. § 924(e).

Bennett was convicted of, among other things, violating

§ 922(g), and the sentencing judge determined that at least three

of Bennett's prior convictions under Maine law were for an offense

that qualifies as a "violent felony" under ACCA. The sentencing

judge therefore applied ACCA's mandatory minimum fifteen-year

sentence to Bennett's § 922(g) conviction. The sentencing judge

then imposed a sentence of twenty-five years of imprisonment for

the § 922(g) conviction, even though, if Bennett were not subject

to ACCA, the maximum prison sentence permitted for that conviction

would have been only ten years. Combined with the punishment that

the sentencing judge imposed for Bennett's other federal

convictions, the twenty-five-year prison sentence for that

conviction resulted in an overall prison sentence for Bennett of

thirty years.

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 In this federal habeas petition, Bennett now contends

that his sentence must be set aside because of its dependence on

ACCA's application. Specifically, Bennett argues that he does not

have three prior convictions for an offense that qualifies as a

"violent felony" within the meaning of ACCA. Bennett contends,

among other things, that Maine law permitted the state to convict

him of two of the supposedly ACCA-qualifying crimes (which were

for the crime of aggravated assault) by showing that he had a mens

rea of mere recklessness. He thus contends that those convictions

cannot qualify as ones for an offense that is a "violent felony."

The District Court agreed with Bennett, granted Bennett's habeas

petition, and ordered that he be re-sentenced without subjecting

him to ACCA's mandatory fifteen-year minimum prison sentence. The

government then filed this timely appeal.

We conclude that the text and purpose of ACCA leave us

with a "grievous ambiguity," United States v. Godin, 534

F.3d 51, 60-61 (1st Cir. 2008) (quoting United States v.

Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (en banc)), as to

whether ACCA's definition of a "violent felony" encompasses

aggravated assault in Maine, insofar as that offense may be

committed with a mens rea of mere recklessness, as opposed to

purpose or knowledge. We therefore conclude that we must apply

the rule of lenity to determine whether that offense qualifies as

a "violent felony" under ACCA. And, in consequence, we conclude

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that Bennett's two prior Maine convictions for aggravated assault

do not so qualify and thus that the District Court's order granting

Bennett habeas relief must be affirmed.

I.

We start by recounting the case's rather involved

procedural history. In the course of doing so, we provide greater

detail about the relevant statutory provisions -- both state and

federal.

A.

On April 5, 1994, Bennett and several co-defendants

were indicted on a number of federal charges in United States

District Court for the District of Maine. After a jury trial,

Bennett was convicted of: (1) conspiracy to possess marijuana with

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(D), and 846; (2) use or carrying of a firearm during and

in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c); and (3) possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).

At sentencing, Bennett received the following

punishment: five years of imprisonment for his conviction under

§§ 841 and 846; five years of imprisonment for his conviction under

§ 924(c); and twenty-five years of imprisonment for his conviction

under § 922(g)(1). The twenty-five-year prison sentence for

Bennett's conviction under § 922(g)(1) was ordered to run

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concurrently to his five-year prison sentence for his conviction

under §§ 841 and 846, and consecutively to his five-year prison

sentence for his conviction under § 924(c). Thus, the overall

term of imprisonment that Bennett received was thirty years.

With respect to Bennett's sentence for his conviction

under § 922(g)(1), the Probation Office prepared a pre-sentence

investigation report (PSR) that concluded that Bennett was subject

to ACCA, due to his having at least three prior convictions for an

offense that qualifies as a "violent felony." The PSR set forth

a recommended sentencing range of 262 to 327 months of

imprisonment, based on the United States Sentencing Guidelines.

The actual prison sentence that was imposed on Bennett for that

conviction -- twenty-five years, or 300 months -- fell within the

recommended range. The sentence for that conviction thus exceeded

both the ten-year maximum prison sentence to which Bennett would

have been subject absent ACCA's application and the fifteen-year

mandatory minimum prison sentence that ACCA itself required to be

imposed.

B.

ACCA provides that a "person who violates [18 U.S.C.

§ 922(g)] and has three previous convictions . . . for a violent

felony or a serious drug offense . . . shall be fined under this

title and imprisoned not less than fifteen years." 18 U.S.C.

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§ 924(e)(1) (emphasis added). ACCA defines a "violent felony" as

follows:

any crime punishable by imprisonment for a term
exceeding one year . . . that -- (i) has as an element
the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary,
arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious
potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added).

Subsection (i) of ACCA's definition of a "violent

felony" is commonly referred to as the "force" clause. The

"otherwise" clause of subsection (ii) of that definition, which

follows that subsection's listing of certain offenses ("burglary,"

"arson," "extortion," or crimes that "involve[] use of

explosives"), is commonly referred to as the "residual" clause.

In applying ACCA's mandatory penalty enhancement to

Bennett's § 922(g)(1) conviction, the sentencing judge relied on

information set forth in the PSR. The PSR had identified Bennett's

ACCA-qualifying prior convictions for a "violent felony" as: 1) a

1978 conviction for Maine aggravated assault, 2) a 1979 conviction

for Maine aggravated assault and criminal threatening with a

dangerous weapon, and 3) a 1986 conviction for Maine aggravated

assault.

The sentencing judge did not specify whether those Maine

state law convictions -- which plainly were not for any of the

enumerated offenses listed in subsection (ii) of

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§ 924(e)(2)(B) -- were for an offense that fell within the force

clause or the residual clause of ACCA's definition of a "violent

felony." Neither did the PSR.

At the time of Bennett's conviction under § 922(g)(1),

Maine defined aggravated assault as, in relevant part,

"intentionally, knowingly or recklessly caus[ing]: A. Serious

bodily injury to another; or B. Bodily injury to another with use

of a dangerous weapon; or C. Bodily injury to another under

circumstances manifesting extreme indifference to the value of

human life." Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981). See

State v. Davis, 580 A.2d 163, 164 (Me. 1990) (noting that the

"critical element of aggravated assault is bodily injury caused by

the defendant's behavior" and that the "defendant's mental state

can be intentional, knowing or reckless").1 Maine defined the mens

rea of recklessness at the relevant time -- as it still does --

1
Maine's aggravated assault statute has been amended since
Bennett's convictions. The District Court based its analysis on
the version of the statute that was operative at the time of the
District Court's decision, rather than on the version that was
operative when Bennett was convicted. The District Court chose to
base its analysis on the amended version of the statute because
the District Court concluded that the amendments to the version of
the statute under which Bennett had been convicted were not
material ones for purposes of the ACCA issue presented, as, among
other things, none of those amendments affected the definition of
"recklessly." The parties follow suit in their briefing to us.
But, as Bennett's aggravated assault convictions were based on the
un-amended version of the Maine statute, we refer to that version
in this opinion. In doing so, we accept the parties' view that
this older version of the statute is not different from the amended
one in any respect that is material to the issues on appeal.

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this way: "[a] person acts recklessly . . . when the person

consciously disregards a risk." Me. Rev. Stat. Ann. tit. 17-A,

§ 35(3)(A); see also Model Penal Code, § 2.02(2)(c) ("A person

acts recklessly with respect to a material element of an offense

when he consciously disregards a substantial and unjustifiable

risk that the material element exists or will result from his

conduct."); United States v. Voisine, 778 F.3d 176, 202 (1st Cir.),

aff'd, 136 S. Ct. 2272 (2016) (noting that Maine's definition of

recklessness is "materially indistinguishable from the definition

of recklessness in the Model Penal Code").2

C.

Bennett filed several unsuccessful petitions for habeas

relief in the years that followed his sentencing. Then, on April

25, 2016, more than two decades after his sentencing, Bennett

sought leave to file this successive petition pursuant to 28 U.S.C.

§ 2255(h)(2).

Based on the Supreme Court's then-recent decision in

Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"),

2 Section 35 of title 17-A was enacted in 1981, over a decade
prior to Bennett's conviction under 18 U.S.C. § 922(g)(1). The
statute was amended in 2007 to replace the pronouns "he" and "his"
with "the person." 2007 Me. Legis. Serv. ch. 173, § 8. At the
time of Bennett's 1978 aggravated assault conviction, Maine's
definition of recklessness tracked the Model Penal Code even more
closely. See State v. Smith, 382 A.2d 40, 42 (Me. 1978) (noting
that the Maine Criminal Code defined recklessness as the
"conscious[] disregard [of] a substantial and unjustifiable risk"
(quoting Me. Rev. Stat. Ann. tit. 17-A, § 10(3)(A))).

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Bennett argued that his two Maine convictions for aggravated

assault could not qualify as convictions for an offense that is a

"violent felony" and thus that he did not have the three prior,

qualifying convictions that ACCA requires. Bennett argued that,

even if those two convictions for aggravated assault might have

qualified at the time of sentencing under the residual clause of

ACCA's definitional provision, Johnson II invalidated that clause

on constitutional vagueness grounds. And, Bennett argued, those

convictions could not qualify under the force clause, which was

the only portion of the definition of "violent felony" that

remained operative after Johnson II under which Bennett's past

convictions for Maine aggravated assault could possibly qualify.3

Two days later, we granted Bennett's application for

leave to file a successive habeas petition. On May 4, 2016,

Bennett filed this habeas petition in the United States District

Court for the District of Maine.

The petition contends that Bennett's convictions for

aggravated assault were not for an offense that has as an element

3 Just before Bennett filed his application for leave to file
this successive petition, the Supreme Court decided Welch v. United
States, 136 S. Ct. 1257, 1268 (2016), which holds that Johnson
II's constitutional rule applies retroactively. The government
makes no argument that, at the time of sentencing, Bennett's
aggravated assault convictions could not qualify under the
residual clause of ACCA's definition of a "violent felony," and
thus that Bennett may not benefit from Welch's holding that Johnson
II's constitutional ruling applies retroactively.

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the "use . . . of physical force against the person of another,"

as the convictions would have had to have been in order to qualify,

after Johnson II, under ACCA's definition of a "violent felony."

The petition contends that, because Maine law permitted Bennett to

be convicted of aggravated assault while having a mens rea of only

recklessness, the offense for which he was convicted does not

involve a "use" of force "against the person of another."

The petition also argues that Bennett's convictions for

aggravated assault were not for a qualifying offense under ACCA

for an additional reason. The petition contends that,

notwithstanding Maine law's requirement that an aggravated assault

cause bodily injury, Maine law permits a defendant to be convicted

of aggravated assault even for "the slightest offensive touching"

and thus that this offense does not have the use of "force" as an

element.

In addition to arguing that Bennett does not have three

prior convictions for an offense that qualifies as a "violent

felony," and thus that ACCA may not be applied in sentencing him,

the petition states that Bennett "ha[s] likely already served the

maximum allowable term" of imprisonment. For that reason, the

petition seeks to have Bennett's sentence set aside.

D.

The District Court bypassed the petition's contention

that, because aggravated assault in Maine requires proof of only

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"the slightest offensive touching," that offense does not have a

use of "force" as an element. The District Court instead focused

on Bennett's contention that these convictions were not for an

offense that has as an element the "use . . . of physical force

against the person of another," 18 U.S.C. § 924(e)(2)(B)(i)

(emphases added), because Maine permitted Bennett to be convicted

of aggravated assault with a mens rea of mere recklessness.4

In evaluating whether these convictions qualify as ones

for a "violent felony," the District Court applied what is known

as the "categorical approach." See Mathis v. United States, 136

S. Ct. 2243, 2248-49, 2251 (2016). That approach requires courts

to determine whether an offense qualifies as a "violent felony"

under ACCA by examining the elements of the offense of conviction

4 The District Court treated Bennett's 1979 conviction for
both aggravated assault and criminal threatening with a dangerous
weapon as one for criminal threatening with a dangerous weapon,
which the District Court found did qualify as a "violent felony"
under ACCA. See 18 U.S.C. § 924(e)(1). Bennett does not dispute
that conclusion on appeal. We therefore focus, as Bennett
requests, solely on the two aggravated assault convictions.
Though not relevant to our analysis, we do note that the PSR
describes Bennett's 1978 conviction by stating that the underlying
indictment charged Bennett with "point[ing] and fir[ing]" a
firearm at another person. The PSR similarly describes Bennett's
1979 conviction by stating that the underlying indictment charged
Bennett with "plac[ing]" another person "in fear of imminent bodily
injury while threatening to kill him while in possession of [a]
knife, standing within a few feet of him." And, finally, the PSR
described Bennett's 1986 conviction by stating that the underlying
indictment charged Bennett with "stabbing" another person "with a
knife in the chest, right arm and back."

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rather than the conduct of the defendant in committing that

offense. Id.

The District Court began the inquiry under the

categorical approach by examining the offense of aggravated

assault in Maine as if that offense is what is known as an

indivisible offense with respect to the mens rea element. This

offense is indivisible with respect to the mens rea element if the

distinct, possible mens reas ("knowingly, intentionally, or

recklessly") represent distinct means of committing the crime of

aggravated assault rather than distinct elements of three distinct

crimes of aggravated assault. The District Court concluded that,

under this elements-based approach, Maine aggravated assault, if

indivisible, has as its mens rea element mere recklessness, as

that is the least strict mens rea that the government would need

to prove a defendant had in order to secure a conviction. On that

understanding, the District Court then concluded that Bennett's

convictions for aggravated assault were not for an offense that

has as an element the "use . . . of physical force against the

person of another," as Bennett's convictions would have had to

have been in order to qualify post-Johnson II as convictions for

an offense that is a "violent felony."

The District Court also concluded that it would reach

the same conclusion if aggravated assault in Maine were actually

what is known as a "divisible offense." This offense is divisible

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with respect to its mens rea element if the possible mens reas for

aggravated assault in Maine denominate not simply distinct means

of committing that one crime but instead the distinct mens rea

element for each of three distinct crimes.5 The District Court

explained that Bennett's convictions for Maine aggravated assault

then would still not constitute convictions that qualify as

predicate offenses under the definition of a "violent felony" set

forth in ACCA's force clause, because the record showed that

Bennett's convictions were for the "reckless" variant.

The government then filed this timely appeal. Our review

is de novo. Ellis v. United States, 313 F.3d 636, 641 (1st Cir.

2002).

II.

The key question on appeal is easier to state than it is

to resolve. Does "caus[ing] . . . bodily injury," Me. Rev. Stat.

Ann. tit. 17-A, § 208, in "conscious[] disregard[ of] a risk" of

doing so (i.e., recklessly), Me. Rev. Stat. Ann. tit. 17-A,

§ 35(3)(A) -- and thus without having the object of causing such

injury (i.e., purposefully) or knowing that such injury is

practically certain to result (i.e., knowingly) -- constitute "the

use . . . of physical force against the person of another," 18

5
The District Court stated, however, that Mathis, 136 S. Ct.
2243, likely "foreclosed" this analysis. Given that there is no
dispute here about what the record reveals about Bennett's
convictions, we need not address this issue.

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U.S.C. § 924(e)(2)(B)(i) (emphasis added)? Only if causing bodily

injury with such a reckless mental state does constitute the use

of physical force against the person of another can Bennett's

convictions for aggravated assault qualify as convictions for a

"violent felony" under § 924(e)(2)(B)(i). And only then may

Bennett be subject to ACCA's fifteen-year mandatory minimum prison

sentence.

We have not previously had occasion to address this

particular question regarding the scope of ACCA's definitional

provision. Nor have we had occasion to consider even a variant of

this question under ACCA's force clause.6 And neither has the

Supreme Court.

6 In United States v. Holloway, 630 F.3d 252, 260-62 (1st Cir.
2011), we did conclude that the then-fully-valid residual clause
of ACCA's definition of a "violent felony" did not encompass a
conviction for reckless battery under Massachusetts law. In so
holding, we explained that "[r]eckless battery does not typically
involve purposeful conduct and thus is not similar in kind to the
offenses enumerated within § 924(e)(2)(B)(ii)." Id. at 261.
There, we separately concluded that the defendant's conviction for
reckless battery did not come within the scope of the force clause
of ACCA's definition of a "violent felony" because the language of
the state charging instrument -- alleging that the defendant "did
assault and beat" the victim -- did not distinguish between the
harmful and the merely offensive forms of battery. Id. at 260.
On that basis, we held that the defendant's conviction could not
qualify as a conviction for a crime that had as an element the
"use . . . of physical force" because the "government ha[d] not
established the offense of harmful battery." Id.
In addition, we have several times held that, under
Massachusetts law, a conviction for assault with a dangerous weapon
(ADW) requires the government to prove that the defendant "acted
intentionally" and therefore that the offense qualifies as a

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 Nonetheless, the question does not come to us on a blank

slate. In United States v. Fish, 758 F.3d 1, 9 (1st Cir. 2014),

we addressed whether reckless assault and battery with a dangerous

weapon (ABDW) under Massachusetts law falls within the closely

analogous statutory definition of a "crime of violence" found in

8 U.S.C. § 16(b). That part of § 16 is much like ACCA's

definitional provision, in that it requires that a qualifying

offense "involve[] a substantial risk that physical force against

the person or property of another may be used in the course of

committing the offense." 18 U.S.C. § 16(b) (emphasis added).

predicate offense under § 924(e)(2)(B)(i). United States v. Am,
564 F.3d 25, 33-34 (1st Cir. 2009); United States v. Hudson, 823
F.3d 11, 17 (1st Cir. 2016) (holding that because "under
Massachusetts decisional law an ADW conviction requires that the
use or threat of physical force be intentional," that offense
"includes a mens rea requirement sufficient to qualify the
conviction as a predicate under the ACCA's force clause"); see
also United States v. Fields, 823 F.3d 20, 34 & n.10 (1st Cir.
2016) (applying Hudson to the identically worded force clause found
in § 4B.1(a) of the Sentencing Guidelines). Thus, we did not have
occasion in those cases to resolve the question whether an offense
committed with a mens rea of mere recklessness could qualify as a
"violent felony" under ACCA's force clause. See Fields, 823 F.3d
at 34 n.10 (noting that, "for good reason," the defendant "d[id]
not contend that a conviction under the Massachusetts ADW statute
fails to qualify as a conviction of a crime of violence because
one may be convicted of that offense on the basis of only a mens
rea of recklessness"); United States v. Whindleton, 797 F.3d 105,
116 n.12 (1st Cir. 2015) (emphasizing that the defendant "has not
developed . . . any argument that Massachusetts' ADW fails to
qualify as a violent felony under the ACCA because it lacks any
requirement that the use or threat be intentional").

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 Moreover, in holding that ABDW did not fall within that

definition, we relied on the Supreme Court's decision in Leocal v.

Ashcroft, 543 U.S. 1, 9 (2004). There, the Court held that the

definition of a "crime of violence" in § 16 -- both as it is set

forth in subsection (b) and as it is set forth in in subsection

(a), which requires that a qualifying offense have "as an element

the use . . . of physical force against the person or property of

another," 18 U.S.C. § 16(a) -- excluded the offense of causing

serious bodily injury by driving while intoxicated, for which the

mens rea element was negligence or less. Leocal, 543 U.S. at 10.

And there is still one more precedent of potential

relevance. After Fish -- a decision that accorded with the

reasoning of every other circuit then to have considered whether

a recklessly committed offense could qualify as a "crime of

violence" as defined in § 16, Fish, 758 F.3d at 10 n.4 -- the

Supreme Court decided Voisine, 136 S. Ct. 2272. In that case, the

Court held that a misdemeanor offense of reckless assault under

Maine law does qualify under a third definitional provision --

namely, 18 U.S.C. §§ 921(a)(33)(A). That provision defines a

"misdemeanor crime of domestic violence" for purposes of 18 U.S.C.

§ 922(g)(9), which prohibits any person who has been convicted of

such a crime from possessing a firearm. See 18 U.S.C. § 922(g)(9).

This third definition, like § 16(a)'s definition of a

"crime of violence," also requires an offense to have as an element

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"the use . . . of physical force," which is the same phrase that

appears as well in § 16(b)'s definition of a "crime of violence."

But, the definition of "misdemeanor crime of domestic violence" in

18 U.S.C. § 921(a)(33)(A) omits the follow-on "against the person

of another" phrase that appears in ACCA's definition of a "violent

felony" and a version of which appears in both subsections (a) and

(b) of § 16's definition of a "crime of violence." See 18 U.S.C.

§ 921(a)(33)(A).

In the end, after carefully reviewing these

various -- and, as we will explain, not always easy to

reconcile -- precedents, as well as the text and purpose of ACCA,

we conclude that ACCA's definition of a "violent felony" contains

a "grievous ambiguity" with respect to whether that definition

encompasses reckless aggravated assault in Maine, Godin, 534 F.3d

at 60-61 (quoting Councilman, 418 F.3d at 83). And thus, applying

the rule of lenity, we conclude that Bennett's convictions for

aggravated assault do not qualify under ACCA's definitional

provision as ones for a "violent felony." See id.

In so holding, as we will explain, we do not see how we

could conclude, based on Voisine, that the key statutory phrase in

ACCA's force clause -- "use . . . of physical force against the

person of another," 18 U.S.C. § 924(e)(2)(B)(i) -- must be

construed to include reckless offenses when a version of that same

language was for so long and so uniformly construed to exclude

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them. After all, as we will explain, Voisine did not have occasion

to construe the "against" phrase that appears in ACCA's force

clause. In fact, Voisine expressly reserved the issue of whether

a statutory definition of a "crime of violence" that contains a

similar phrase -- namely, the one that is set forth in § 16 -- must

be construed to encompass reckless offenses. 136 S. Ct. at 2280

n.4. And, finally, nothing about ACCA's purpose suggests that

ACCA's definitional provision must be as encompassing with respect

to crimes as § 921(a)(33)(A), notwithstanding the arguably

narrower text of ACCA's definitional provision. If anything,

ACCA's purpose actually points in just the opposite direction,

given the breadth of conduct that Maine criminalizes as reckless

aggravated assault and the distinct types of offenses that it is

clear that Congress meant to bring within ACCA's sweep.

As this synopsis of our reasoning indicates, there are

quite a few steps that we must take in order to resolve the key

question that we confront. And so we have a bit of a journey ahead

of us. We begin by taking the first of these many steps, which

involves our review of one of the precedents that, though not

strictly controlling, is still of considerable relevance: the

Supreme Court's decision in Leocal.

A.

Leocal held that a defendant's conviction under Florida

law for the offense of causing serious bodily injury to another

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while driving under the influence does not fall within the scope

of § 16's definition of a "crime of violence." 543 U.S. at 10.

Leocal based that conclusion on the fact that a defendant may be

convicted of that offense absent the government having to offer

"proof of any particular mental state." Id. at 7-10, 8 n.5 (noting

that "[m]any states have enacted similar [driving-under-the-

influence] statutes," some of which, like Florida, do not require

"proof of any mental state," and others of which "appear[] to

require only proof that the person acted negligently in operating

the vehicle").

Leocal's analysis is relevant here for the following

reason. As we have mentioned, § 16(a), the force clause for the

statutory definition of a "crime of violence," requires an offense

to have as an element "the use . . . of physical force against the

person . . . of another" in order to qualify as a "crime of

violence." 18 U.S.C. § 16(a). Likewise, in order to qualify as

a "crime of violence" under § 16(b), that statutory definition's

residual clause, an offense must "involve[] a substantial risk

that physical force against the person or property of another may

be used in the course of committing the offense." 18 U.S.C.

§ 16(b). Thus, § 16's definition of a "crime of violence," like

ACCA's definition of a "violent felony," contains a follow-on

"against" phrase (in both of the operative clauses in § 16's

definition) that modifies the prior "use . . . of physical force"

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phrase.7 Moreover, Leocal gave significant weight to that

"against" phrase in concluding that Florida's driving-under-the-

influence offense was not a "crime of violence" under § 16.

Specifically, Leocal first focused on § 16's force

clause, subsection (a), and, in particular, on the ordinary meaning

of the word "use" that appears in that clause. 543 U.S. at 9.

But, the Court explained, although that word ordinarily "requires

active employment," the word "use" is also an "elastic" one that

takes its meaning from "context" and from the "terms surrounding

it." Id. For that reason, the Court concluded that the "critical

7 Specifically, § 16 provides:
The term "crime of violence" means -- (a) an offense
that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or (b) any other offense that is a
felony and that, by its nature, involves a substantial
risk that physical force against the person or property
of another may be used in the course of committing the
offense.
8 U.S.C. § 16. Section 16, unlike ACCA, is itself purely
definitional. It has operative effect because a number of other
federal statutes rely on the definition that § 16 sets forth in
providing that certain adverse consequences -- whether for
purposes of sentencing or immigration -- must be imposed on an
individual who has committed a "crime of violence." Thus, in
Leocal, the question before the Court arose because immigration
authorities had begun removal proceedings against the petitioner,
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), after he was convicted
of a state driving-under-the-influence charge. 543 U.S. at 3-4.
That statute makes removable any alien who has committed an
"aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii), a term that
encompasses any "crime of violence," as defined in § 16, that is
punishable by a term of imprisonment of more than one year,
8 U.S.C. § 1101(a)(43)(F).

- 20 -
aspect of [the force clause in § 16] is that a crime of violence

is one involving the 'use . . . of physical force against the

person or property of another.'" Id. (emphasis in original)

(quoting 18 U.S.C. § 16(a)).

The Court then referred back to this "against" phrase

that it had identified as the critical one in pointing out that,

although we would naturally describe a person who pushed someone

else as having "'use[d] . . . physical force against' another," we

would not similarly say that a "person 'use[d] . . . physical force

against' another by stumbling and falling into him." Id. (brackets

modified). For, the Court concluded, "[w]hile one may, in theory,

actively employ something in an accidental manner," an ordinary

English speaker would not likely "say that a person actively

employs physical force against another person by accident." Id.

(second emphasis added).

On this basis, Leocal held that the plain meaning of

§ 16(a) excluded the driving-under-the-influence offense at issue.

Id. at 10. The offense's minimal mens rea element made it

impossible to say that the offense has as an element the

"use . . . of physical force against the property or person of

another." 8 U.S.C. § 16(a).

The Court went on to explain that § 16(b), the

definition's residual clause, contained the same "formulation" --

including the same "against" phrase -- as the force clause,

- 21 -
§ 16(a). Id. at 10-11. And thus the Court concluded that the

same result should obtain under this clause, too. Id.

The Court then added that, even if § 16 did not clearly

exclude conduct committed negligently or with no mens rea at all,

the Court "would be constrained to interpret any ambiguity in the

statute in petitioner's favor." Id. at 11 n.8. The Court reasoned

that, even though § 16 has "both criminal and noncriminal

applications," the rule of lenity applied to both (including to

the noncriminal application at issue in Leocal), given the need to

"interpret the statute consistently." Id.

Leocal explicitly left open, however, whether the "key"

"use . . . of physical force against" language common to both

§ 16(a) and 16(b) could be satisfied by an offense that required

the government to prove conduct undertaken recklessly rather than

merely negligently or with no mens rea at all. Id. at 9, 13. And

so that question remained an open one when we encountered it in

Fish.

B.

By the time that the issue arose in our circuit

approximately a decade later in Fish, ten other circuits had

weighed in. And, each of those circuits had held that the

definition of a "crime of violence" under § 16 (under either that

section's force clause, its residual clause, or both) did not reach

the recklessly committed crimes that were at issue in the cases at

- 22 -
hand. Fish, 758 F.3d at 9-10, 10 n.4 (citing cases).8 Moreover,

many of these courts had reached that conclusion while emphasizing

the significance of the same "against" phrase that Leocal had

deemed critical. See, e.g., Tran v. Gonzales, 414 F.3d 464, 472

(3d Cir. 2005) (emphasizing that the element of "reckless[ly]

endangering . . . the property of another . . . involves a

substantial risk of causing injury to the property of another.

But it does not involve a substantial risk of using force against

the property of another" (emphases omitted)); Bejarano-Urrutia v.

Gonzales, 413 F.3d 444, 446-47 (4th Cir. 2005) ("[T]he conclusion

8 In addition, by that time, decisions from several of our
sister circuits had held that reckless offenses did not qualify as
a "violent felony" under the definition set forth in ACCA's force
clause or under the identically worded provision found in
§ 4B1.2(a) of the Sentencing Guidelines. United States v. Boose,
739 F.3d 1185, 1186-87 (8th Cir. 2014) ("So long as the Arkansas
statute at issue encompasses reckless driving which results in
serious injury, [the defendant's] conviction was not a qualifying
crime of violence under the force clause of the Guidelines.");
United States v. Duran, 696 F.3d 1089, 1095 (10th Cir. 2012)
(construing § 4B1.2(a) of the Sentencing Guidelines and holding
that because "aggravated assault under Texas law could be committed
with a reckless state of mind," Tenth Circuit "case law therefore
forecloses it from qualifying as a crime of violence"); United
States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011)
(interpreting Leocal as a requirement that the "'use of physical
force' clause of the ACCA, § 924(e)(2)(B)(i), requires more than
reckless conduct"). After our decision in Fish, but before the
Supreme Court's decision in Voisine, at least one other circuit
held the same with respect to ACCA. See United States v. Dixon,
805 F.3d 1193, 1197 (9th Cir. 2015) (citing Leocal, and concluding
that the "use of force" ACCA's force clause requires in order to
bring a conviction within its orbit "must be intentional, not just
reckless or negligent").

- 23 -
of the Leocal Court that '[i]n no "ordinary or natural" sense can

it be said that a person risks having to "use" physical force

against another person in the course of operating a vehicle while

intoxicated and causing injury' strongly indicates that the result

in Leocal would have been the same even had a violation of the

statute there at issue required recklessness rather than mere

negligence." (citation omitted)); United States v. Chapa-Garza,

243 F.3d 921, 926 (5th Cir. 2001) ("The criterion that the

defendant use physical force against the person or property of

another is most reasonably read to refer to intentional conduct,

not an accidental, unintended event.").

In Fish, we drew a similar conclusion. We held that

§ 16(b)'s definition of a "crime of violence" excluded the

Massachusetts offense of ABDW. 758 F.3d at 16.9 We pointed out

that this offense has as its mens rea element only recklessness,

and that Massachusetts courts had made clear that "conduct that

underlies a conviction for operating under the influence and

causing serious bodily injury may also be charged as ABDW." Id.

9The defendant in Fish had been indicted under 18 U.S.C.
§ 931(a), "the federal body armor statute, which prohibits any
person who has been convicted of a felony that is a crime of
violence as defined in section 16 from possessing body armor that
has been sold or offered for sale in interstate or foreign
commerce." 758 F.3d at 3-4 (quoting 18 U.S.C. § 931(a)) (quotation
marks, brackets, and ellipses omitted). The government conceded
that § 16(a) -- that definition's force clause -- did not apply to
the defendant's conviction for ABDW. See United States v. Tavares,
843 F.3d 1, 13 (1st Cir. 2016); Fish, 758 F.3d at 9.

- 24 -
at 9-10 (quoting United States v. Hart, 674 F.3d 33, 43 n.9 (1st

Cir. 2012)). We also noted that Leocal had stated that "[w]hile

one may, in theory, actively employ something in an accidental

manner, it is much less natural to say that a person actively

employs physical force against another person by accident." Id.

at 9 (emphasis in original) (quoting Leocal, 543 U.S. at 9-10).

And, based on that portion of Leocal, and the breadth of conduct

that Massachusetts ABDW covered, we further stated that "Leocal's

rationale would seem to apply equally to crimes encompassing

reckless conduct wherein force is brought to bear accidentally,

rather than being actively employed." Id. We then summarized our

holding by stating, "we agree with ten Circuits that reckless

conduct bereft of an intent to employ force against another falls

short of the mens rea required under section 16(b) as interpreted

in Leocal." Id. at 16 (emphasis added).

C.

From this review, ACCA's force clause would not appear

to encompass reckless aggravated assault under Maine law. ACCA's

force clause contains virtually the same language as do § 16(a)

and (b): "use . . . of physical force against the person of

another," 18 U.S.C. § 924(e)(2)(B)(i). Moreover, just as

Massachusetts law makes clear that "causing serious bodily injury"

to another by operating a motor vehicle under the influence

qualifies as ABDW, given the offense's recklessness mens rea, see

- 25 -
Hart, 674 F.3d at 43 n.8 (citing Commonwealth v. Filoma, 943 N.E.2d

477, 482-83 (Mass. App. Ct. 2011), and Commonwealth v. Kenney, 772

N.E.2d 53, 54 n.1 (Mass. App. Ct. 2002)), so, too, Maine's highest

court has held that the same conduct qualifies as an aggravated

assault in that state, given that aggravated assault in Maine also

permits conviction for a mens rea of recklessness, see State v.

Pineo, 798 A.2d 1093, 1095 & n.2 (Me. 2002); State v. Cloutier,

628 A.2d 1047, 1048 (Me. 1993).10

In response, the government points out that Fish

construed § 16(b), that statute's residual clause, rather than

§ 16(a), its force clause. The government also notes that, for

10 Though Fish provides no indication that its holding was
based on the specific way that Massachusetts defines recklessness,
we note that Massachusetts defines recklessness as follows:
Wanton or reckless conduct is determined based either on
the defendant’s specific knowledge or on what a
reasonable person should have known in the
circumstances. If based on the objective measure of
recklessness, the defendant’s actions constitute "wanton
or reckless conduct . . . if an ordinary normal [woman]
under the same circumstances would have realized the
gravity of the danger." If based on the subjective
measure, i.e., the defendant's own knowledge, "grave
danger to others must have been apparent and the
defendant must have chosen to run the risk rather than
alter [her] conduct so as to avoid the act or omission
which caused the harm."
Commonwealth v. Pugh, 969 N.E.2d 672, 685 (Mass. 2012) (quoting
Commonwealth v. Welansky, 55 N.E.2d 902, 902 (Mass. 1944))
(alterations in original).

- 26 -
present purposes, we are construing ACCA's force clause, given

that ACCA's residual cause is no longer operative.

But, the government's argument fails to explain how

§ 16's residual clause could possibly be narrower than § 16's force

clause in any respect relevant to the issue in this case. After

all, the residual clause in § 16 at least speaks in terms of

"risk." See 18 U.S.C. § 16(b). If anything, then, the force

clause in § 16 would seem to be less clearly encompassing of

reckless conduct than the residual clause in § 16. We thus do not

see how the fact that Fish was construing § 16's residual clause,

rather than § 16's force clause, could provide a basis for us not

to apply the reasoning of that case to our own.

Nevertheless, the government does identify one other

reason why Fish's analysis is not applicable here. And that reason

is the Supreme Court's post-Fish decision in Voisine. This

argument does have potential merit. A "controlling intervening

event" such as a "Supreme Court opinion on the point" can dislodge

otherwise binding circuit precedent. Gonzalez-Mesias v. Mukasey,

529 F.3d 62, 65 (1st Cir. 2008). Moreover, we did recently state

that Voisine "calls into question the continuing validity of Fish,

as well as the similar and analogous holdings of at least ten other

circuits." United States v. Tavares, 843 F.3d 1, 18 (1st Cir.

2016). Accordingly, we now consider the question before us in

light of Voisine.

- 27 -
 III.

Voisine concerns the scope of yet a third statute, 18

U.S.C. § 921(a)(33)(A). That statute defines the term "misdemeanor

crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9).11

And that statute then defines a "misdemeanor crime of domestic

violence" as one that has as an element "the use . . . of physical

force" and that is committed by a person who is in an intimate

relationship with the victim. 18 U.S.C. § 921(a)(33)(A)(ii).12

We focus first on Voisine's textual analysis of this

definition. We then consider Voisine's analysis of the purpose of

11 Section 922(g)(9) provides that it is "unlawful for any
person . . . who has been convicted in any court of a misdemeanor
crime of domestic violence to . . . possess . . . any firearm or
ammunition."
12Specifically, § 921(a)(33)(A) provides that a "misdemeanor
crime of domestic violence" is an offense that:
(i) is a misdemeanor under Federal, State, or Tribal
law; and (ii) has, as an element, the use or attempted
use of physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse, parent,
or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is
cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly
situated to a spouse, parent, or guardian of the victim.
18 U.S.C. § 921(a)(33)(A). Moreover, the Supreme Court held in
United States v. Hayes, 555 U.S. 415, 426 (2009), that, for
purposes of § 921(a)(33)(A), the predicate crime need not have as
a "denominated . . . element" that it be committed "by a person
who has a specified domestic relationship with the victim."
Rather, the Court held that proof of the relationship between the
perpetrator and the victim is an element of § 922(g)(9) itself.
Id.

- 28 -
the statute in which that definition appears. After undertaking

that review, we examine post-Voisine lower-court precedents, some

of which have read Voisine to require that similarly worded

statutes (including ACCA) be construed to encompass reckless

offenses, and some of which have not. We conclude by explaining

why we agree with those courts that have held that Voisine does

not require the conclusion that ACCA encompasses reckless

offenses, at least when they are defined as broadly as aggravated

assault is defined in Maine.

A.

Voisine addressed whether the definition of a

"misdemeanor crime of domestic violence" encompassed the offense

of assault under Maine law. 136 S. Ct. at 2276-77 (citing Me.

Rev. Stat. Ann. tit. 17-A, § 207). The defendant contended that

the definition did not encompass that offense because that offense

does not have as an element "the use . . . of physical force" that

§ 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic

violence" requires. The defendant based this contention on the

fact that Maine law permits the offense of assault in Maine to be

committed merely recklessly, rather than knowingly or

intentionally -- which is to say, that the offense may be committed

merely with conscious disregard of the risk of causing bodily

injury rather than with the purpose to do so or with the knowledge

- 29 -
that injury to another is a practically certain result. Id. at

2278 (citing Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A)).

In rejecting the defendant's contention, Voisine

focused, as a matter of text, on the ordinary meaning of the word

"use" in the definition's key phrase -- "use . . . of physical

force," 18 U.S.C. § 921(a)(33)(A). Id. Voisine reasoned that

"[n]othing in the word 'use' . . . indicates that § 922(g)(9)

applies exclusively to knowing or intentional domestic assaults."

Id.

The key, the Court explained, is that, although the word

"use" does require that the "force involved in a qualifying assault

must be volitional," that word "does not demand that the person

applying force have the purpose or practical certainty that [the

force] will cause harm, as compared with the understanding that it

is substantially likely to do so." Id. at 2278-79. Thus, the

Court concluded that, at least when appearing in connection with

§ 921(a)(33)(A)'s phrase "use . . . of physical force," the word

"use" in § 921(a)(33)(A) is "indifferent as to whether the actor

has the mental state of intention, knowledge, or recklessness with

respect to the harmful consequences of his volitional conduct."

Id. at 2279.

To make the point that a reckless assault did involve a

"volitional" harm-causing action, and thus that such an offense

did have as an element the "use . . . of physical force," the Court

- 30 -
offered two examples. The Court explained that "[i]f a person

with soapy hands loses his grip on a plate, which then shatters

and cuts his wife, the person has not 'use[d]' physical force in

common parlance." Id. But, when a person "throws a plate in anger

against the wall near where his wife is standing," his "hurl counts

as a 'use' of force even if the husband did not know for

certain . . . but only recognized a substantial risk, that a shard

from the plate would ricochet and injure his wife." Id.

Similarly, the Court explained, "if a person lets slip

a door that he is trying to hold open for his girlfriend, he has

not actively employed ('used') force even though the result is to

hurt her." Id. But, if a person "slams the door shut with his

girlfriend following close behind," he, too, has "used physical

force" -- "regardless of whether he thinks it absolutely sure or

only quite likely that he will catch her fingers in the jamb."

Id.

Voisine acknowledged that Leocal had construed a

"similar" statutory definition, id. -- namely, § 16's definition

of a "crime of violence," which, as we have noted, employs the

phrase "use . . . of physical force against the person or property

of another" in both its force and residual clauses, id. (quoting

18 U.S.C. § 16). And, Voisine acknowledged, Leocal stated that it

is "[not] natural to say that a person actively employs physical

force against another person by accident." Id. (quoting Leocal,

- 31 -
543 U.S. at 9) (brackets in original). Voisine noted, too, that,

in Leocal, "the Court stated, one 'would not ordinarily say a

person "use[s] . . . physical force against" another by stumbling

and falling into him.'" Id. (quoting Leocal, 543 U.S. at 9)

(modifications in original).

But, Voisine explained, its conclusion that reckless

assault under Maine law did have as an element "the use . . . of

physical force" was "in no way inconsistent" with "Leocal's

exclusion of accidental conduct" from the definition of a "crime

of violence" set forth in § 16. Id. at 2280 n.4. The Court

explained that "[c]onduct like stumbling (or, in our hypothetical,

dropping a plate) is a true accident, and so too the injury arising

from it; hence the difficulty of describing it as the 'active

employment' of force." Id. at 2279 (quoting Leocal, 543 U.S. at

9). By contrast, "acts undertaken with awareness of their

substantial risk of causing injury" can cause harm as "the result

of a deliberate decision to endanger another -- no more an

'accident' than if the 'substantial risk' were 'practically

certain.'" Id. at 2279 (emphasis added). Thus, the word "use" in

the definition at issue in Voisine did not exclude reckless conduct

even though Leocal held that that same word, at least as used in

the context of § 16, did exclude negligent conduct. Id. at 2280

n.4.

- 32 -
 Voisine also explained that its construction of the

phrase "use . . . of physical force" to "encompass[] acts of force

undertaken recklessly," id. at 2282, was fully consistent with

Congress's purposes in enacting § 922(g)(9), to which the

definition of "misdemeanor crime of domestic violence" in

§ 921(a)(33)(A) applies. "Congress," the Court explained,

"enacted § 922(g)(9) in 1996 to bar those domestic abusers

convicted of garden-variety assault or battery misdemeanors --

just like those convicted of felonies -- from owning guns." Id.

at 2280; see also Tavares, 843 F.3d at 18. The "point" of the

statute was to "apply firearms restrictions to those abusers, along

with all others, whom the States' ordinary misdemeanor assault

laws covered." Voisine, 136 S. Ct. at 2280. Thus, Congress, in

applying § 921(a)(33)(A)'s definition of the term "misdemeanor

crime of domestic violence" to § 922(g)(9), intended to align the

language of § 922(g)(9) with the state statutes under which

domestic abusers are typically charged, including not only assault

but also common-law battery. Id.; see also United States v.

Castleman, 134 S. Ct. 1405, 1411 (2014) (noting that the phrase

"'[d]omestic violence' is not merely a type of 'violence'; it is

a term of art encompassing acts that one might not characterize as

'violent' in a nondomestic context").

Against this background, Voisine emphasized that reading

§ 921(a)(33)(A)'s definition of the phrase "misdemeanor crime of

- 33 -
domestic violence" to exclude crimes committed with a mens rea of

recklessness "risk[ed] rendering § 922(g)(9) broadly inoperative

in the 35 jurisdictions with assault laws extending to recklessness

-- that is, inapplicable even to persons who commit that crime

knowingly and intentionally." 136 S. Ct. at 2280. And Voisine

pointed out that such a result would contravene Congress's evident

intent for the definition of a "misdemeanor crime of domestic

violence" to encompass "garden-variety assault or battery

misdemeanors." Id.

The Court then concluded by addressing whether it was

obliged to apply the rule of lenity. Id. at 2282 n.6. The Court

explained that it was not so obliged because, as its review of the

text and purpose revealed, "§ 921(a)(33)(A) plainly encompasses

reckless assaults." Id.

B.

Based on Voisine, one of our sister circuits has

concluded that a conviction for the offense of "drive by

shooting" -- which requires proof that: "1) the defendant 'was in

or had just exited a motor vehicle'; 2) the defendant 'recklessly

discharged a firearm at or toward another motor vehicle or a

building'; and 3) the defendant fired 'at or toward a person, or

an occupied building or motor vehicle'" -- qualifies as a predicate

offense under the force clause of ACCA's definition of a "violent

felony." United States v. Fogg, 836 F.3d 951, 955-56 (8th Cir.

- 34 -
2016) (quoting Minn. Stat. § 609.66, subd. 1e(a), (b)). Fogg

stated that both § 921(a)(33)(A) and ACCA's force clause "define

qualifying predicate offenses as those involving the 'use . . . of

physical force' against another." Id. at 956. Fogg then explained

that Voisine's holding that "the word 'use' does not demand that

the person applying force have the purpose or practical certainty

that it will cause harm," id. (quoting 136 S. Ct. at 2279),

requires the conclusion that "[r]eckless conduct" can

"constitute[] a 'use' of force under the ACCA," id.

One other circuit court, and at least one district court

in our circuit, have reached similar conclusions as Fogg post-

Voisine. See United States v. Mendez-Henriquez, 847 F.3d 214,

221-22 (5th Cir. 2017), cert. denied, No. 16-8850, __ S. Ct. __,

2017 WL 1495092 (May 22, 2017) (interpreting § 2L1.2 of the

Sentencing Guidelines, which defines a "crime of violence" as, in

part, any offense that "has as an element the use . . . of physical

force against the person of another" and applying Voisine's

conclusion that the "predicate conduct" must be "volitional");

United States v. Howell, 838 F.3d 489, 501 (5th Cir. 2016), cert.

denied, 137 S. Ct. 1108 (2017) (interpreting § 4B1.2(a) of the

Guidelines, which, as we have noted, contains a force clause that

is worded identically to the force clause found in ACCA and

emphasizing that the "Supreme Court's . . . decision in Voisine

substantially undercuts" the Fifth Circuit's earlier holding that

- 35 -
"'use' of force encompasses only intentional conduct"); United

States v. Webb, 217 F. Supp. 3d 381 (D. Mass. 2016); but cf.

Baptiste v. Att'y Gen., 841 F.3d 601, 606-07, 607 n.5 (3d Cir.

2016) (declining to "examine to what extent the reasoning of

Voisine applies in the § 16(b) context to broaden [the Third

Circuit's] existing interpretation of [that] provision" in light

of the "'differences in [the] contexts and purposes' of

§ 921(a)(33)(A) and § 16" that Voisine itself identified (quoting

Voisine, 136 S. Ct. at 2280 n.4) (last alteration in original));

United States v. Mitchell, 653 F. App'x 639, 644 n.5 (10th Cir.

2016) (declining to revisit the Tenth Circuit's "requirement" that

"[i]f the elements of an offense may be proven without intentional

or purposeful conduct (e.g., an offense that may be committed with

a reckless mens rea), that offense does not constitute a crime of

violence" under § 4B1.2 of the Sentencing Guidelines).

In addition, in United States v. Benally, 843 F.3d 350,

354 (9th Cir. 2016), the Ninth Circuit noted that Voisine's holding

that "reckless conduct" has as an element the "use . . . of force"

as required by § 921(a)(33)(A) created "tension" with earlier Ninth

Circuit precedent holding that "neither recklessness nor gross

negligence is a sufficient mens rea to establish that a conviction

is for a crime of violence under § 16." (quoting Fernandez-Ruiz

v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006)). But, the Ninth

Circuit then went on to hold that it did not need to resolve that

- 36 -
"tension" because the government in Benally "concede[d] that [the

relevant statute], which requires a mental state of only gross

negligence, prohibits conduct that cannot be a 'crime of violence,'

even after Voisine." Id.

Other district courts in our circuit, however, have come

down the other way. See United States v. Dancy, __ F. Supp. 3d __,

2017 WL 1227913 (D. Mass. Apr. 3, 2017); United States v.

Lattanzio, __ F. Supp. 3d __, 2017 WL 519241 (D. Mass. Feb. 8,

2017); Virden v. United States, No. 90-CR-10325-LTS, 2017 WL 470891

(D. Mass. Feb. 3, 2017); Cruz v. United States, No. 09-CR-10104-

RWZ, ECF No. 57 (D. Mass. Jan. 26, 2017); United States v. Sabetta,

221 F. Supp. 3d 210 (D.R.I. 2016). And so, too, have other district

courts outside of our Circuit. See, e.g., United States v. Butler,

__ F. Supp. 3d __, 2017 WL 2304215 (D.D.C. May 25, 2017); United

States v. Brown, __ F. Supp. 3d __, 2017 WL 1383640 (D.D.C. Apr.

12, 2017); United States v. Wehunt, __ F. Supp. 3d __, 2017 WL

347544 (E.D. Tenn. Jan. 24, 2017); United States v. Johnson, __ F.

Supp. 3d __, 2016 WL 7666523 (N.D. Cal. Dec. 16, 2016); United

States v. Hill, __ F. Supp. 3d __, 2016 WL 7076929 (W.D. Pa. Dec.

5, 2016).13

13
We note that the Supreme Court is presently considering a
challenge to § 16(b) on constitutional vagueness grounds. See
Sessions v. Dimaya, No. 15-1498 (argued Jan. 17, 2017 and restored
to the calendar for reargument on June 26, 2017).

- 37 -
 The government urges us to follow Fogg and similarly

inclined courts, notwithstanding our holding in Fish. And we can

see why. Voisine makes clear that a reckless assault does not

involve merely the "accidental" employment of force but instead

the "'use' of force," 136 S. Ct. at 2279, a conclusion that is

arguably in tension with our reasoning in Fish. See Fish, 758

F.3d at 9 (describing "reckless conduct wherein force is brought

to bear accidentally, rather than being actively employed"). And,

as we will explain, Voisine does provide some support for the

conclusion that, because the ordinary meaning of the phrase

"use . . . of physical force," as found in § 921(a)(33)(A),

encompasses reckless assault, so, too, must the parallel phrase in

ACCA: "use . . . of physical force against the person of another."

But, Voisine did not expressly rule out the possibility

of there being grounds for concluding otherwise. See id. at 2280

n.4. In fact, Voisine expressly left open the question whether

§ 16 "includes reckless behavior," by stating that "[c]ourts have

sometimes given [the] two statutory definitions divergent readings

in light of differences in their contexts and purposes, and we do

not foreclose that possibility with respect to their required

mental states." Id. "All we say here," the Court emphasized, "is

that Leocal's exclusion of accidental conduct from a definition

hinging on the 'use' of force is in no way inconsistent with our

inclusion of reckless conduct" within the definition of a

- 38 -
"misdemeanor crime of domestic violence" set forth in

§ 921(a)(33)(A). Id. And that express reservation accords with

Leocal's earlier caution that, "when interpreting a statute that

features as elastic a word as 'use,' we construe language in its

context and in light of the terms surrounding it." 543 U.S. at 9.

Thus, to determine how Voisine bears on the question at

hand, we must decide what significance, if any, to attribute to

the seemingly divergent "contexts and purposes" between ACCA and

§ 922(g)(9). And so we now turn to that task -- which, fortunately,

is the last one that we need to undertake.

1.

With respect to "contexts," Voisine had no occasion to

consider the meaning that the "elastic" word "use," Leocal, 543

U.S. at 9, might take on in the context of a clause that includes

a modifying "against" phrase, such as the one that appears in

ACCA's definition of a "violent felony" or § 16's definition of a

"crime of violence." 136 S. Ct. at 2278-79. But, while Voisine

does not make clear that this is the kind of divergent "context"

that the Court had in mind, there is a strong case for concluding

that such a divergent context is a kind that matters.

Congress chose in ACCA to "denominate 'the use of force

against another' as a single, undifferentiated element." United

States v. Hayes, 555 U.S. 415, 421 n.4 (2009). Thus, the relevant

volitional act that an offense must have as an element for ACCA

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purposes is not just the "use . . . of physical force," as is the

case under § 921(a)(33)(A), but the "use . . . of physical force

against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). And,

in context, the word "against" arguably does convey the need for

the perpetrator to be knowingly or purposefully (and not merely

recklessly) causing the victim's bodily injury in committing an

aggravated assault.

Indeed, ten circuits -- plus our own, in Fish -- had

deployed similar logic prior to Voisine in construing § 16's text

to exclude various offenses for which a mens rea of recklessness

is sufficient. And still other courts have so held in Voisine's

wake in construing ACCA's similar words. Moreover, many of those

courts -- including Fish itself -- emphasized the "against" phrase

in so holding.

The logic of these precedents is clear enough. The

injury caused to another by the volitional action in a reckless

assault is, by definition, neither the perpetrator's object, nor

a result known to the perpetrator to be practically certain to

occur. For that reason, one might doubt whether such a volitional

action -- even if it is an action that

"deliberate[ly] . . . endanger[s] another," Voisine, 136 S. Ct. at

2279 -- is an action that also is naturally described as one that

is taken "against" another. See, e.g., Dancy, 2017 WL 1227913, at

*4 ("[T]hrowing a plate against the wall does not involve using

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force 'against the person of another,' as would be present if the

husband deliberately threw the plate at his wife."); see also

Voisine, 136 S. Ct. at 2286 n.4 (Thomas, J., dissenting) ("The

Door Slammer has used force against the door, which has then caused

injury to his girlfriend." (emphasis added)).

We recognize that one might say in common parlance that

"throw[ing] a plate . . . against the wall," Voisine, 136 S. Ct.

at 2279, in conscious disregard of the risk posed to one standing

nearby, is not only a "use . . . of physical force" but also a

"use . . . of physical force against" the person who is clearly in

harm's way. In such a scenario, there is an identifiable person

endangered by the force used. It is much less clear, however,

that it would be similarly natural to say that a person who chooses

to drive in an intoxicated state uses force "against" the person

injured in the resulting, but unintended, car crash, even if one

might say that the act of driving a car is volitional and therefore

that the driver "use[d] . . . physical force" by driving the car

so recklessly. Cf. Voisine, 136 S. Ct. at 2287-90 (Thomas, J.,

dissenting) (highlighting that it is "implausible" that an

ordinary English speaker would say that the "Text-Messaging

Dad" -- who, "[k]nowing that he should not be texting and driving,"

is nevertheless distracted by sending a text to his wife, which

"causes [him] to rear end the car in front of him" and thereby

injures his son, a passenger -- "use[s] . . . physical force

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against his son" (emphasis added and brackets modified));

Webster's New Collegiate Dictionary 62 (9th ed. 1991) (defining

"against" as "directly opposite"; "facing").

Yet aggravated assault in Maine encompasses the latter

drunk-driving example just as surely as it encompasses the former

plate-throwing example. And, strikingly, several courts --

including our own in Fish -- that have found the "against" phrase

significant in excluding various reckless offenses from the scope

of § 16 have pointed to the fact that the underlying offense at

issue encompassed causing injury by driving under the influence.

See Fish, 758 F.3d at 9-10; Oyebanji v. Gonzales, 418 F.3d 260,

264 (3d Cir. 2005) (Alito, J.); Bejarano-Urrutia, 413 F.3d at 446.

It is hard to know whether the majority in Voisine would

describe such reckless driving as merely involving a "use . . . of

physical force" or as also involving a "use . . . of physical force

against" the injured party. The simple fact is that Voisine had

no need to describe the offense at issue there by means of the

latter phrase in order to find the offense qualifying under the

statutory definition there at issue. Voisine also does not itself

address the reckless driving example that the Voisine dissent

posits and that the Voisine dissent then contends cannot be

described as one that involves "using force against the [driver's]

son." 136 S. Ct. at 2290 (Thomas, J., dissenting). But, it is at

least of some note that Voisine does not at any point actually

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describe a reckless assault in the terms that the dissent treats

Voisine as using to describe such an offense: as an offense that

involves the "use . . . of physical force" against the victim.14

For these reasons, while Voisine does make clear that a

reckless assault is not a true accident and thus involves a

"use . . . of physical force," Voisine does not appear to foreclose

the possibility that the follow-on "against" phrase in ACCA

performs the narrowing function that Fish and a slew of other

circuits had ascribed to the similarly worded "against" phrase in

§ 16. After all, Voisine does expressly reserve the issue. Id.

at 2280 n.4. And, we note, the canon against surplusage does at

14Voisine does describe the definition of "misdemeanor crime
of domestic violence" set forth in § 921(a)(33)(A) as, in general,
one that "include[s] any misdemeanor committed against a domestic
relation that necessarily involves the 'use . . . of physical
force.'" Id. at 2276 (quoting 18 U.S.C. § 921(a)(33)(A)). But,
many offenses that qualify as a "misdemeanor crime of domestic
violence" are committed with a mens rea greater than recklessness.
Thus, this statement does not suggest with any clarity that
reckless aggravated assault itself involves a "use . . . of
physical force against" another. So, too, with Voisine's summary
of its conclusion, which stated: "[t]he federal ban on firearms
possession applies to any person with a prior misdemeanor
conviction for the 'use . . . of physical force' against a domestic
relation." Id. at 2282 (quoting § 921(a)(33)(A)). Finally,
Voisine describes the state offense committed by one of the
petitioners, who violated Maine's general assault statute, Me.
Rev. Stat. Ann. tit. 17-A, § 207, as being "against a family or
household member." Id. at 2277. But, that general description of
the offense does not address itself specifically to the reckless
variant of ordinary assault under Maine law. Nor does that general
description concern whether a reckless assault has as an element
a "use . . . of physical force against another," which is the
question we are charged with answering here.

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least suggest that the follow-on "against" phrase in ACCA must be

conveying something that the phrase "use . . . of physical force"

does not. See Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 66

(1st Cir. 2011).15

Nevertheless, we can hardly be sure. We have already

noted that, at one point, Voisine could be read to be equating the

phrases "use . . . of physical force" and "use . . . of physical

force against." See 136 S. Ct. at 2279. And we have suggested

before, in construing § 921(a)(33)(A), that the phrase

"use . . . of physical force" should be understood to refer,

15 We are aware that the "against" phrase in ACCA could be
denominating simply that a person as opposed to property must be
harmed. And, if so, that "against" phrase would be usefully
clarifying that an offense must have as an element harm to a person
rather than to a thing. See Mendez-Henriquez, 847 F.3d at 222
(analyzing whether the phrase "against the person of another" as
used in § 2L1.2 of the Guidelines encompasses a conviction for
"maliciously and willfully discharging a firearm at an occupied
motor vehicle" (citation and modifications omitted)). But the
same could not so easily be said of the "against" phrase in § 16's
definition of a "crime of violence," as that phrase expressly
references force used against both persons and property. See
18 U.S.C. § 16 (referring to a "use . . . of physical force against
the person or property of another"). And, as it is not clear to
us that Congress intended for ACCA's follow-on "against" phrase to
serve a wholly distinct narrowing function from the one that its
similarly worded counterpart in § 16 performs, the canon against
surplusage does at least suggest that the "against" phrase in
ACCA's definition of a "violent felony" may well bear on the
required mental state of a qualifying offense under ACCA and not
simply on whether the harm is caused to a person rather than to
property.

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implicitly, to a use of force directed "against" the victim.16 If

the phrase "use . . . of physical force" does itself impliedly

refer to actively employing force "against" the victim as opposed

to against the harm-causing object, then Voisine, by holding that

such a phrase encompasses reckless assault, would indicate that a

reckless assault (in any variant) necessarily involves a

"use . . . of physical force against" the victim, no less than

does a knowing or purposeful one. And so, in that event, the

inclusion of an "against" phrase in ACCA would seem simply to make

manifest what the preceding "use . . . of physical force" phrase

itself necessarily implied.17

There is also another reason that we might discount the

significance of the fact that § 921(a)(33)(A) omits the "against"

16 United States v. Nason, 269 F.3d 10, 16 (1st Cir. 2001)
(describing the "use . . . of physical force" in § 921(a)(33)(A)'s
definition of a "misdemeanor crime of domestic violence" as
requiring that "power, violence, or pressure [be] directed against
another person's body"); see also id. at 19 (noting that
§ 921(a)(33)(A) "focuses on the assailant's conduct (i.e., whether
the assailant directed physical force against the victim)"); id.
at 20 (noting that offensive physical contacts "emanate from the
application of some quantum of physical force, that is, physical
pressure exerted against a victim"); see also Johnson v. United
States, 559 U.S. 133, 139 (2010) ("Johnson I") (noting that Black's
Law Dictionary "defines 'physical force' as "'[f]orce consisting
in a physical act, esp. a violent act directed against a robbery
victim").
17 This conclusion would also accord with the two instances
referenced earlier in which Voisine describes the offense of
aggravated assault in general as being one that is against the
victim.

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phrase that ACCA's definition includes. Section 921(a)(33)(A)

defines a "misdemeanor crime of domestic violence" to require that

a predicate conviction have as an element the "use . . . of physical

force" and that the victim be in an intimate relationship with the

perpetrator. Hayes, 555 U.S. at 426. Congress might thus have

thought it unnecessary to specify that the "use . . . of physical

force" that a qualifying offense must have as an element be

"against" a person.

For these reasons, we are, in the end, uncertain. After

carefully reviewing Voisine's analysis of the text of

§ 922(a)(33)(A), we can see how Voisine could be read to indicate

that the "against" phrase in ACCA just expresses what the phrase

"use . . . of physical force" itself implies, and thus that the

phrase "use . . . of physical force against" no more excludes

reckless assaults than does the phrase "use . . . of physical

force" itself. But, we also do not believe Voisine must be so

read. For, while Voisine's review of the text of § 921(a)(33)(A)

does make clear that a reckless assault involves a deliberate act

to endanger another and thus qualifies as a crime that has as an

element a "use . . . of physical force," Voisine does not make

similarly clear that a reckless assault involves the deliberate

decision to employ force "against the person of another."

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 2.

When we turn from "contexts" to "purposes," we find no

more reason to be confident that the two definitions must be

construed to be equally encompassing of recklessly committed

assaults. In fact, as we have previously explained, § 922(g)(9)

and ACCA "address significantly different threats." United States

v. Booker, 644 F.3d 12, 21 (1st Cir. 2011).

Specifically, "ACCA seeks to protect society at large

from a diffuse risk of injury or fatality at the hands of armed,

recidivist felons." Id. By contrast, "§ 922(g)(9) addresses an

acute risk to an identifiable class of victims -- those in a

relationship with a perpetrator of domestic violence." Id.; cf.

Castleman, 134 S. Ct. at 1411 (noting that the phrase "'[d]omestic

violence' is not merely a type of 'violence'; it is a term of art

encompassing acts that one might not characterize as 'violent' in

a nondomestic context"); Booker, 644 F.3d at 19 (explaining that

Congress "expressly rejected § 16's definition of 'crime of

violence,' adopting a definition of 'misdemeanor crime of

violence' that was, according to [§ 922(g)(9)'s sponsor] 'probably

broader' than the definition of 'crime of violence' in § 16."

(quoting 142 Cong. Rec. S11872-01, S11877 (daily ed. Sept. 30,

1996) (statement of Sen. Lautenberg))). Indeed, we explained in

Booker that, although "ACCA and § 922(g)(9) are both animated by

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a protective rationale," there are nevertheless "sound reasons to

decline to interpret the two statutes in tandem." Id. at 20.

In particular, ACCA aims at offenses that "show an

increased likelihood that the offender is the kind of person who

might deliberately point the gun and pull the trigger," rather

than offenses that merely "reveal a degree of callousness toward

risk." Begay v. United States, 553 U.S. 137, 146 (2008).

"Crimes," the Court stated in Begay, "committed in such a

purposeful, violent, and aggressive manner are potentially more

dangerous when firearms are involved. And such crimes are

characteristic of the armed career criminal, the eponym of the

statute." Id. at 145 (citations omitted) (emphasis added); United

States v. Velázquez, 777 F.3d 91, 97 (1st Cir. 2015) ("[T]he

driving force behind Begay was the Court's desire to limit

application of the stringent penalties imposed by the ACCA . . . to

those predicate felonies involving conduct that is not only

dangerous but also indicative of a willingness to inflict harm on

an identifiable victim." (emphasis added)).

Against that backdrop, the Court in Begay held that the

defendant's convictions under New Mexico law for driving under the

influence -- a strict liability offense in that state -- were not

for the kind of offense that Congress would have intended to

qualify as a "violent felony." 553 U.S. at 146. Begay therefore

concluded that there was "no reason to believe that Congress

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intended a 15-year mandatory prison term where that increased

likelihood does not exist." Id.

To be sure, Begay did not hold that recklessly committed

offenses are excluded from ACCA's force clause. Begay was

construing only an offense for which the mens rea was non-existent.

What is more, Begay was only construing ACCA's then-still-fully-

operative residual clause. And the Court rested its analysis, in

which purposefulness loomed so large, in significant part on the

fact that the residual clause in § 924(e)(2)(B)(ii) followed the

listing in that provision of a number of offenses for which

knowledge or purpose is the requisite mens rea. Id. at 144-45.

But we still think it at least unclear from Begay and other

precedents relying on it, see, e.g., United States v. Holloway,

630 F.3d 252 (1st Cir. 2011) -- as well as ACCA's ultimately

inconclusive legislative history -- whether Congress intended

ACCA's enhanced sentencing regime to apply to an offense such as

reckless aggravated assault as Maine defines it.

After all, we have noted, the reckless form of that crime

in Maine encompasses causing injury by driving while intoxicated.

So defined, that crime -- serious as it is -- does not necessarily

reveal a defendant to pose the kind of risk that Congress appears

to have had in mind in defining a "violent felony" under ACCA.

Cf. Leocal, 543 U.S. at 11 ("In construing both parts of § 16, we

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cannot forget that we ultimately are determining the meaning of

the term 'crime of violence.").18

C.

Stepping back, it may seem anomalous that an offense

bearing the name "aggravated assault" could escape ACCA's reach.

And it must seem especially so when the aggravated assault appears

to have been carried out either at gunpoint or at knifepoint -- as

was apparently the case here for the two prior Maine convictions

at issue in this case. But Congress instructed us to take our

cues from an offense's elements rather than from either its label

or the underlying means by which that offense was carried out in

a particular case. Mathis, 136 S. Ct. at 2251.

Moreover, under the categorical approach, we must

consider the least serious conduct covered by an offense. See

United States v. Armour, 840 F.3d 904, 908 (7th Cir. 2016); cf.

18 In concluding that the defendant's conviction for driving
under the influence and causing serious bodily injury was not a
"crime of violence" under § 16, Leocal pointed out that a
particular section of the Immigration and Naturalization Act (INA)
describes "any crime of reckless driving or of driving while
intoxicated" as a "serious criminal offense" but not apparently as
a "crime of violence, as defined in section 16 of title 18."
Leocal, 543 U.S. at 12 (quoting 8 U.S.C. § 1101(h)(2), (3)). For
that reason, Leocal concluded that "[i]nterpreting § 16 to include
DUI offenses . . . would leave [that section of the INA]
practically devoid of significance." Id. For our purposes, this
section of the INA at least suggests that Congress also does not
equate crimes of driving while intoxicated (serious though they
are) with what ACCA deems "violent felonies." See Oyebanji, 418
F.3d at 264.

- 50 -
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). And, by

defining the offense's requisite mens rea to be mere recklessness,

Maine ensures that this offense covers conduct less clearly in

Congress's ken when it crafted ACCA than much of the conduct that

this offense covers -- namely, causing bodily injury in a drunk-

driving crash with no intent to cause such injury and no certainty

that injury to another would result from driving in an intoxicated

state. See Pineo, 798 A.2d at 1095 & n.2; Cloutier, 628 A.2d at

1048.

We recognize that, as the District Court suggested,

aggravated assault may be indivisible with respect to the mens rea

element of that offense. For that reason, it may be that in some

states even aggravated assaults committed intentionally or

knowingly -- forms of aggravated assault that we may assume that

Congress wished to cover -- would not be covered. In some states,

after all, no more than proof of reckless conduct would be required

to secure a conviction in the event that the offense is not

divisible along the mens rea axis. But, this result, insofar as

it may turn out to be required by the way that a state may define

the offense of aggravated assault, also follows from the way that

Congress has crafted the definition of a "violent felony." As the

Court has made clear, Congress chose to focus on the elements of

the offense of conviction in defining what a "violent felony" is.

See Mathis, 136 S. Ct. at 2251.

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 In all events, the exclusion of reckless aggravated

assault from the definition of a "violent felony" would not risk

rendering ACCA broadly "inoperative" in the way that the exclusion

of reckless assault would risk rendering broadly inoperative

§ 922(g)(9). See Voisine, 136 S. Ct. at 2280. And thus, for this

reason, too, we cannot say that ACCA's definition of a "violent

felony" must, as a practical matter, have been intended to

encompass reckless assault just because Voisine held that Congress

did intend for a different definition to embrace that offense.

D.

Voisine certainly does "call[] into question" our

otherwise seemingly applicable analysis in Fish, see Tavares, 843

F.3d at 18, but we cannot say that Voisine does more than that.

Voisine expressly reserves the question whether its holding

applies to a statute that is "similarly worded" to ACCA. 136 S.

Ct. at 2280 n.4. Prior to Voisine, circuits, including our own,

consistently construed statutory language of the kind before us

here narrowly. Against that background, given the differences in

"contexts and purposes" between the statute construed in Voisine

and ACCA, id., we are left with a "grievous ambiguity," Godin, 534

F.3d at 60-61 (quoting Councilman, 418 F.3d at 83), concerning

whether Congress intended the phrase "use . . . of physical force

against the person of another" in ACCA's definition of a "violent

felony" to include or exclude reckless aggravated assault as Maine

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defines it. And so, we must apply the rule of lenity. Id.

(explaining that the "rule of lenity applies only if, after seizing

everything from which aid can be derived, a court can make no more

than a guess as to what Congress intended" (internal quotation

marks, brackets, and citation omitted)); see also Leocal, 543 U.S.

at 11 n.8 ("Even if § 16 lacked clarity . . . we would be

constrained to interpret any ambiguity in the statute in

petitioner's favor.").19 For, in addition to the notice concerns

that one might doubt are of much practical significance in a case

with these facts, the rule of lenity does serve the additional and

important purpose of ensuring "the proper balance between

Congress, prosecutors, and courts." United States v. Bowen, 127

F.3d 9, 13 (1st Cir. 1997) (quoting United States v. Kozminski,

487 U.S. 931, 952 (1988)). We are considering here a sentencing

enhancement of great consequence. We should have confidence,

therefore, that we are doing Congress's will in applying this

enhancement here.

19 Although the defendant does not advance an argument in
favor of lenity, we may affirm the District Court "on any basis
available in the record." United States v. Rodríguez-Pena, 470
F.3d 431, 433 (1st Cir. 2006) (upholding the district court's
ruling on grounds not raised below in the context of a defendant's
motion for a reduction of his sentence pursuant to 18 U.S.C.
§ 3582(c)); see also Delatorre v. United States, 847 F.3d 837, 843
n.2 (7th Cir. 2017) (affirming the district court on grounds not
raised by the parties in the context of a § 2255 petition).

- 53 -
 For these reasons, we cannot conclude that ACCA's

definition of a violent felony encompasses aggravated assault in

Maine, insofar as that offense has a mens rea element of mere

recklessness. And, accordingly, we hold that Bennett does not

have three prior convictions for a "violent felony" and that he

should not have been sentenced for his conviction under § 922(g)(1)

based on ACCA's mandatory fifteen-year minimum prison sentence.20

IV.

The judgment of the District Court is affirmed.

20In consequence of this holding, we, like the District Court,
need not reach the question whether Maine's aggravated assault
statute categorically requires that the defendant have employed
"force capable of causing physical pain or injury to another
person." Johnson I, 559 U.S. at 140.

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